Strengthening of the Notary's Financial Responsibility in the Aspect of Invalidation of Notarized Transactions

Abstract

Introduction. The number of real estate transactions certified by notaries is growing every year. Сompared to 2020, the number of transactions with non-residential real estate certified by notaries increased by 24%, with residential premises - by 13% The Federal Notary Chamber notes. It happens due to the continued trend of legislative expansion of real estate transactions subject to mandatory notarization, as well as the desire of citizens and organizations to obtain maximum legal guarantees and protection of their property rights and interests. The powers of a notary in real estate transactions are very wide. So, the notary himself can request supporting documents, check wills, powers of attorney, pledge of property based on the data of registers, draw up an agreement correctly, send a package of documents to the Federal Service of State Registration, Cadastre and Cartography (Rosreestr) authorities for state registration of the transfer of ownership, hand over the registered agreement to the parties, etc. At the same time, annually facts of notaries participation in fraudulent schemes with real estate, recognition by courts of notarized transactions as invalid (due to nullity), bringing notaries to disciplinary and criminal liability are revealed. The article provides specific examples from judicial practice and statistical data confirming this thesis, substantiates proposals for further improvement of civil legislation in order to prevent fraudulent actions with real estate and violations of the legal rights of citizens and organizations committed with the participation of notaries.Materials and methods. This study is based on a combination of such methods of scientific knowledge as: the dialectical method, which made it possible to connect the theory of civil and inheritance law and judicial practice; the formal legal method made it possible to analyze legislative norms; the systematic method allowed us to consider the institution of liability of notaries as a system with internal unity and interconnections with other institutions of law.The results of the study. In the course of the study, the provisions of the Fundamentals of the legislation of the Russian Federation on the notary, regulating the goals and objectives of the notary in ensuring the protection of the rights and legitimate interests of citizens and legal entities, the Civil Code of the Russian Federation on the recognition of transactions as invalid, were analyzed. The judicial practice on invalidating certain real estate transactions certified by notaries (including from the author’s personal practice), the statistics of the Ministry of Justice of Russia on bringing notaries to criminal and disciplinary liability, the number of complaints against the actions (inaction) of notaries, on the recognition invalid transactions, insurance compensation for losses incurred through the fault of notaries in 2019-2021. The conclusion is substantiated that the victims of fraudulent actions with real estate involving notaries are, as a rule, pensioners, the disabled, whose rights and legitimate interests need special legal protection. Such facts, to a certain extent, undermine the trust of the participants in the property turnover in the institution of the notary. A number of gaps in civil legislation and legislation on notaries in the area under study have been identified, and proposals have been formulated to fill them. Discussion and conclusion. The strengthening of the role of a notary in the process of real estate transactions, the improvement of technologies for notarial actions (remote transactions, transactions using an electronic digital signature, the introduction of the "electronic notarized power of attorney" service, etc.) certainly correspond to the dynamics of modern property turnover. However, at the same time, fraudulent schemes with real estate are also being improved, in which, as evidenced by judicial practice and statistics, notaries themselves are involved. For maximum legal protection of the interests of participants in property turnover, it is proposed to include in the legislation the norms on compensation by notaries of the full market value of property lost through their fault, lost profits, as well as moral damage, damage to business reputation and court costs incurred due to illegal actions of notaries of the parties to the transaction. It is also proposed to legislate the presumption of moral harm to the citizens participating in the transaction, which, according to the court decision that has entered into force, is declared invalid due to nullity.